This week at the Court – in Plain English

Posted Fri, April 8th, 2011 5:25 pm by Lisa McElroy

From the public's perspective, things are relatively quiet at the Court right now, as it takes a break before beginning its final group of arguments on April 18. However, the Justices and their clerks are busier than ever: the Court still has to issue opinions in forty-seven cases before the end of June, so they are likely writing, circulating, concurring, and dissenting like mad.

This week, therefore, I am going to touch on the two opinions that the Court issued this week, but also talk a little bit about how the Court does the work of deciding its cases. Let's start there.

Supreme Court arguments take place on Mondays, Tuesdays, and Wednesdays, usually about two weeks each month. At the end of almost every week, the Justices meet in a private conference room for their Conference, during which they discuss (among other things) the cases that were argued that week (if any). The Chief Justice leads the Conference, and the most junior Justice (currently Justice Kagan) takes notes. The Justices go around the table and tell the group how they plan to vote and why; each Justice gets a turn to speak before any one Justice can speak twice.

After all of the Justices have voted, someone is assigned to write the majority opinion. If the Chief Justice is in the majority, he will assign the opinion either to an associate Justice who is also in the majority or to himself. If the Chief Justice is in the minority, the senior Justice in the majority gets to assign the majority opinion instead. Many factors go into deciding who writes an opinion: it may concern a "pet" legal issue for a particular Justice (such as Justice Scalia and the Confrontation Clause); it may be that a particular Justice has not received a majority assignment for this sitting; it may be that a Justice has finished all of her current assignments and is ready for a new one. And in some cases, the opinion may present a dry and technical issue that none of the Justices is particularly anxious to write about; when this happens, one of the junior Justices usually gets the assignment. All of this we know, as the Chief Justice has spoken publicly about these factors.

Of course, many Court watchers speculate that the Chief Justice and other assigning Justices use assignments strategically: if they are hoping to encourage more Justices to join an opinion, or if they want to foster a particular line of analysis, they may choose to assign the majority to a particular colleague. In fact, when Justice Stevens retired, many speculated that one great loss to the Court, particularly to the liberal wing, was the loss of his assignment power (as he was often the senior Justice in the majority when the Chief was in the minority).

Because opinions are usually spread out fairly evenly among the Justices, with each Justice writing about eight or nine majority opinions a Term, Court watchers can sometimes predict who the author of an opinion will be and how the case will come out. How? Well, if most of the cases from a particular sitting have been decided, but one or two are still outstanding, we can look to see who has not written a majority opinion in a case from that sitting. Usually, that Justice will be the author of the not-yet-issued opinion. Looking back at the tenor of that Justice's questions during oral argument (as well as her history of decision-making in cases with similar legal issues), we can predict how she might have voted and where the majority will come out.

Is it a perfect science? Absolutely not! But because we do not get behind-the-scenes looks at the process (and even the law clerks and staff are not allowed at Conference), we have to make our best guesses.

All of that said, let's talk about this week's opinions. Based on the factors I just discussed, Tom predicted that Justice Thomas would have an opinion on Monday, and he was correct. The case was Cullen v. Pinholster, and it involved that favorite of all topics: habeas corpus. Several times over the past few weeks, I've explained that pretty much nobody understands habeas (with the exception of a very few lawyers who specialize in the area and (hopefully) judges who hear habeas petitions). In this case, Scott Pinholster had been sentenced to death for murder, but federal courts had overturned his death sentence because he had suffered brain damage as a child. However, Pinholster did not rely heavily on evidence concerning his disability at his trial, and he did not raise the issue before the state courts when he challenged the constitutionality of his conviction after his earlier appeals were unsuccessful. When he reached federal court, however, he claimed that his trial counsel had been ineffective because he had not introduced enough evidence about his brain injury. The federal court considered the new evidence, and that decision was the main issue before the Supreme Court.

Justice Thomas, joined at least in part by six other Justices, wrote that the brain injury evidence had come up sufficiently at trial, and that the federal court could not consider evidence that the state court did not. Moreover, said the majority, when it looked at the evidence that was before the state court, it concluded that Pinholster did not qualify for federal habeas relief.

Whew! That's tough stuff, and it is hard to hear "“ after all, many might say, a man who has significant disabilities should not receive the death penalty. Why does it matter when he raised the mitigating evidence (or the evidence that proves him to be less culpable)? Well, because the purpose of current habeas law is to try to prevent prisoners from endlessly challenging their convictions and detentions. Decisions like the one in Cullen, say some, will encourage defendants to make their claims early on, which in turn will make the judicial system more efficient.

Last, but not least, in Arizona Christian School Tuition Organization v. Winn, the Court held that taxpayers do not have "standing" to challenge tax credits for contributions to religious schools. What is standing? Well, to simplify the concept, it is a plaintiff's right to bring her case in federal court. Federal courts will only hear cases when the person bringing the claim has actually been injured. Taxpayers usually cannot show that they have personally been injured, and so they almost never can sue in federal court over government expenditures. About forty years ago, however, the Court held that taxpayers could challenge government spending on religion. While this case would seem to change that rule, Justice Kennedy, writing for the majority, explained that because Winn was about tax credits, not government spending, the facts were different enough to warrant a different result. In her first dissent as a Justice, Justice Kagan disagreed emphatically, dismissing the majority's distinction as a mere formality; the opinion is interesting, even for non-lawyers, and it might be a good starting point for those interested in learning more about Court opinions.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.